PETITIONER: BOARD OF HIGH SCHOOL & INTERMEDIATE EDUCATION, U.P. & OTHERS Vs. RESPONDENT: KUMARI CHITTRA SRIVASTAVA & OTHERS DATE OF JUDGMENT: 20/11/1969 BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SIKRI, S.M. SIKRI, S.M. MITTER, G.K. SHAH, J.C. GROVER, A.N. CITATION: 1970 AIR 1039 1970 SCR (3) 266 ACT: Natural Justice-Board of examination cancelling result without of opportunity to candidate-Notice if necessary. HEADNOTE: The respondent appeared in the Intermediate examination and passed, but the appellant, instead of declaring her result, addressed a letter on May 24, 1961, to the Principal of the college in which the Respondent was studying, making enquiries regarding the respondent's attendance. According to the regulations, a candidate must attend 75% of the lectures given in each subject. The Principal, by her letter dated June 14, 1961, replied that the respondent was at one time short of attendance, that she made good the 'shortage in all subjects except one, but the shortage in that subject was due to the fact that lectures Were not given in that subject the lecturer having been on leave. By its letter dated July 6, 1961, the appellant cancelled the respondent's result and no reference was made to the Principal's letter in the appellant's letter. The respondent thereupon filed a writ petition challenging the appellant's order cancelling the result, and the High Court allowed the petition. In appeal to this Court, HELD : The appellant should have given an opportunity to the respondent to present her case and pursuade the appellant not to cancel her result. [269 C] Whether a duty arises in a particular case to issue a show cause notice before inflicting a penalty does not depend on the authority's satisfaction that the person to be penalised has no defence but On the nature of the order proposed to be passed. In the present case, the impugned order imposed a penalty on the respondent as she was denied the fruits of her labour, and when passing it, the appellant was exercising quasi-judicial functions. [269 D-F] JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1191 of 1967.
Appeal by special leave from the judgment and order dated
May 23, 1962 of the Allahabad High Court in Special Appeal
No. 592 of 1961.
C. B. Agarwala and 0. P. Rana, for the appellants.
The respondent did not appear.
The Judgment of the Court as delivered by
Sikri, J. This appeal by special leave is directed against
the judgment of the Allahabad High Court whereby it allowed
the
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writ petition file by the respondent, Kumari Chittra
Srivastava, hereinafter referred to as the petitioner, and
quashed the impugned order but left it open to the Board of
High School and Intermediate Education, hereinafter referred
to as the Board, to reconsider the case after giving the
petitioner a chance to offer her explanation.
The facts are not in dispute and the only question which
arises is whether in the circumstances the petitioner was
entitled to an opportunity to represent her case before the
Board prior to the passing of the impugned order.
The relevant facts in brief are these. The petitioner was
in 1959-60 session a student of Basant Girls Intermediate
College, Varanasi. She appeared at the Intermediate
examination in 1960 but failed. She then joined the
Government Inter College for Girls at Jaunpur. Her name
-was sent up for Intermediate examination to be held in 1961
by the Principal. She appeared in the examination but her
result was not declared by the Board. On May 24, 1961, the
Board addressed a letter to the Principal making enquiries
regarding the attendance of the petitioner. According to
the regulations framed by the Board no candidate can be
presented for the Intermediate examination unless he/she has
attended during two academical years 75% of lectures given
in each subject in which the candidate is to be examined.
In the case of a failed candidate, like the petitioner, the
percentage shall be calculated for one academical year, but
Regulation 5(xiii) enables the head of a recognised
institution to condone the deficiency in certain cases.
This regulation reads
“(xiii) The rule regarding minimum attendance shall be
strictly enforced. The head of the recognised institution
may condone a deficiency in attendance of not more than
(a) ten days in the case of a candidate for the High School
Examination; and
(b) ten lectures (including periods -of practical work, if
any) given in each subject in the case of a candidate for
the Intermediate Examination.
All cases in which this privilege is exercised shall be
reported to the Director of Education as the Chairman of the
Board.
In the cases of failed or detained candidates whose
attendance of one year will be taken into account, the
shortage to be condoned shall be reduced to half.”
268
The Principal received the letter when on vacation outside
Jaunpur. The Principal replied on June 14, 1961, saying
that a proper reply to paragraphs 1 and 2 of the letter will
be sent after July 8, 1961. She, however, stated
“When Km. Chitra Srivastava absented herself for a pretty
long period on account of her illness, the position :was
explained to her, besides informing her guardian also who
was even called to the office and acquainted with the
circumstances. At that time, it was possible for her to
make good this shortage by her regular attendance.
The teacher in Home Science took leave in February, 1961.
Chitra was short in attendance in other subjects also, but
she made good the shortage by her regular attendance. When,
during the days the classes were held, lectures in other
subjects were held and the girl attended there, it was, not
considered proper to detain her from appearing at the
examination on account of her absence from lectures in a
subject in which the required lectures were not held.
I got the student admitted to the examination as I was
confident that the officers of the Board will agree with my
view.”
The substance of the letter was that the shortage in
lectures was due to the lecturer taking leave.
The Board was, however, impatient. It is not clear whether
this letter was received by the Board because no reference
to it is made in the letter dated July 6, 1961. The Board
wrote:
“In continuation of this office letter No. E.I./617, dated
24th May, 1961 and telegram dated 24th May, 1961 1 have the
honour to inform that you have not furnished the desired
information about the student Km. Chitra Srivastava, roll
no. 50452. From your previous letter No. 143/E dated 6th
May, 1961,’ it is learnt that the admission of the student
by you to the examination. by condoning her absence from
seven lectures on the subject of Home Science was contrary
to rules. Hence the student’s Inter Examination of 1961 is
cancelled. Kindly communicate this to the student under
intimation to this office.”
269
The Principal replied on July 11, 1961, giving details of
the lectures attended and requested that the order be
cancelled and the severe punishment be not awarded to the
petitioner.
On October 6, 1961, the petitioner filed a petition under
Art. 226 of the Constitution challenging the impugned order
dated July 6, 1961. Mathur, J., dismissed it summarily. On
appeal, Srivastava and Katju, JJ., allowed the petition, as
mentioned earlier. They were of the view that the Board,
while cancelling the examination, acted in a quasi-judicial
capacity. The Board was “by cancelling the examination
inflicting a penalty” and if opportunity had been given to
the petitioner to present her case she might have persuaded
the Board not to cancel the examination.
The learned counsel for the appellant, Mr. C. B. Aggarwal.
contends that the facts are not in dispute and it is further
clear that no useful purpose would have been served if the
Board had served a show-cause notice on the petitioner. He
says that in view of these circumstances it was not
necessary for the Board to have issued a show-cause notice-.
We are unable to accept this contention. Whether a duty
arises in–a particular case to issue a show cause notice
before inflicting a penalty does not depend on the
authority’s satisfaction that the person to be penalised has
no defence but on the nature of the order proposed to be
passed.
We agree with the High Court that the impugned order imposed
a penalty. The petitioner has appeared in the examination
and answered all the question papers. According to her she
had passed. To deny her the fruits of her labour cannot but
to be called a penalty. We are unable to appreciate the
contention that the Board, in “cancelling her examination”
was not exercising quasijudicial functions. The learned
counsel urges that this would be, casting a heavy burden on
the Board. Principles of natural justice are to some minds
burdensome but this price-a small price indeed-has to be
paid if we desire a society governed by the rule of law. We
should not be taken to have decided that this rule will also
apply when a candidate is refused admission to an
examination. We are not concerned with this question and
say nothing about it.
The learned counsel invites us to hold that the decision of
the Board was on the facts correct and that the Board had no
power to condone the shortage of 2 lectures. But we decline
to into these questions. We are not sitting as a court of
appeal and it is for the Board to decide after giving an
opportunity to the petitioner and pass such orders as it
thinks fit. Whether it has the power to condone the
shortage of lectures is for it, at least in the first
instance, to decide.
270
The learned counsel further invites us to say that the
possible courses which the petitioner’s counsel had outlined
before the High Court will not be legal or justified. The
petitioner’s counsel had pointed out that the Board could
have been persuaded to adopt -some of the following courses
“(1) To accept the explanation of the principal as valid.
(2) To condone the shortage of two lectures which the
Principal could not condone. The question whether the Board
had power to condone shortage was raised in the Board of
High School and Intermediate Education Uttar Pradesh
Allahabad and others versus G. Vishwanath Nayar but was not
decided and was left open. It -is urged on behalf of the
appellant that the power to admit a candidate to an
examination vests in the Board. -The Regulations only
provide the extent to which shortage in attendance can be
condoned by the heads of institutions. There is nothing in
the Regulations to limit -the power of the Board itself to
admit a candidate to an examination after condoning shortage
which could -not be condoned by the head of the institution.
(3) After noting that a technical breach of rules had been
committed the Board or the Chairman may have decided not to
take any action.
(4) The Board may have framed a new regulation with
retrospective effect either permitting the head of the
institution to condone a shortage in a case like that of the
appellant or permitting the Board itself to make the
necessary condonation in such cases.
(5) The Board could have given an authoritative
interpretation of the words ‘lectures given’ in clause (iii)
of regulation 5 of chapter XII and decided whether the words
covered such cases where the students were present to attend
the lecture but it could not be arranged because of some
unavoidable reason.”
But, like the High Court, we are not called upon to
pronounce on their legality or appropriateness at this
stage.
In the result the appeal fails and is dismissed. As the
petitioner (now respondent) is not represented there will be
no order as to costs.
V.P.S. Appeal dismissed.
271